Trying to play to Justice Anthony Kennedy’s gut is a dicey endeavor. So when the U.S. Court of Appeals for the 9th Circuit on Tuesday struck down California’s same-sex marriage ban — also known as Proposition 8 — with reasoning clearly designed for a future Kennedy opinion, constitutional lawyers were quick to point out the unintended consequences of the appeals court’s solicitousness.

Judge Stephen Reinhardt, writing for the 9th Circuit majority, chose not to embrace the broad ruling handed down by U.S. District Judge Vaughn Walker — that same-sex couples cannot be denied the right to marry, period. Instead, Reinhardt ruled narrowly that Prop 8, which passed by ballot referendum in 2010, violated the U.S. Constitution’s guarantee of equal protection because it took away, without any rational reason, the right to marry that the California Supreme Court had guaranteed to the state’s gay and lesbian citizens earlier that year.

Reinhardt is known as the most liberal judge on the country’s most liberal appeals court, so it would have been no surprise had he ruled in line with Walker. His refusal to address the broader question in Perry v. Brown appeared to be a deliberate effort to remove the issue from Supreme Court review. It suggests that he thought an argument good enough for one moderate Republican at the bottom of the federal court pecking order (Walker) was too bold for another at the very top (Kennedy).

Full Story from the Huffington Post

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